*1
Billie Lou
Gary CRAIN, Dean
Defendant-Respondent.
No. 14054.
Supreme of Idaho. Court
April 1983. Hancock,
J.D. Rexburg, appellant. Crain, Gary Dean pro se. BISTLINE, Justice. Crain,
Appellant, Billie Lou married Doug Stephenson on November couple separated in February of 1975 and Billie Lou went to Lake City Salt parents. live with her testified She that as February having 1975 she ceased sexual Doug. relations with Billie Lou returned to Rexburg April home, of 1975 and moved into a mobile Doug where she lived with her sister. visit- times, on ed her there several occasion stayed night. Billie Lou testified that she did not have sexual intercourse with visits, Doug and her during these sister slept testified that and Billie Lou separate rooms when he visited. 9-16,1975, During the week of Billie May respondent Gary engaged Lou and Crain attending Army sexual intercourse while an training Gary Reserve session. Later home, and in moved into Billie Lou’s mobile that she Gary June of 1975 Billie Lou told pregnant. Rebecca was born to Billie Lou Febru- 3,1976. Gary Billie Lou and were then ary living together, but Billie Lou was still mar- Rebecca, Doug. Gary supported re- ried ferred to and treated her as.his income dependent claimed her as a on his tax returns.
Billie “In granted appears Lou was a divorce from California it that Doug August of 1976. In that action are evi- ready courts about admit such Billie Lou and Doug stipulated Doug that dence in their cases to establish Rebecca, was presumptively the father of In Idaho our courts have gone not that but that he was her natural father.1 permit far. Our Idaho statutes do not it interpreting and our Idaho decisions Gary Billie Lou and were Sep- married in against those statutes rule its admission. 1976; tember they of lived together until I believe that there would any- not be they were permanently separated July of thing particularly wrong with considering 1978. A Toby, was born of this mar- along such tests with other evidence riage, and Gary acknowledged this child as establishing paternity except that being his. being chances of his the father are usual- 7, 1978, On July Billie instigated Lou ly high rated so that I am afraid such divorce proceedings against Gary, therein appear to be more conclu- seeking children, child support for her two sive than it actually is. Toby and Rebecca. Gary paternity denied “It ruling is therefore the of this court of Rebecca and at the divorce trial that that under the law as it now exists HLA issue was submitted to the court. testing which tends to establish trial, Prior to Billie Lou had moved the is not Perhaps admissible. what should trial court for ruling an in limine on the have been done is to have tested other admissibility Human Leucocyte Antigene parties who might have been the father (HLA) tissue typing tests establishing and see if they could not have been ex- paternity. The trial court ruled that it cluded. Such exclusions of other parties would exclude the HLA test results on the accomplished would have more in indicat- grounds that Idaho statutes and case law ing the probability in this allow the admission of such tests only when case than testing pur- would the the results exclude paternity. In its writ- ported father.” ten memorandum order denying the admis- R. 52-53. sion of results, the HLA test the court trial, stated: At an offer of proof was made Billie Lou’s attorney, argued who that her “A motion is before the court request- testified, witnesses would have based ing ruling from the court that results of results, the HLA test that “Mr. Crain can- testing HLA for blood type may be ad- not be excluded as the father of that child mitted although the results of such test- and that the probability being of his ing will not show that the party is not the is percent 98.98 and the father. odds are 140,000 to 1 that person some other in the appears “It that modern testing HLA male white population could be the father quite has become sophisticated and that of Rebecca Gary Crain other than Dean the testing can limit minority small Crain.” Opposing argued counsel then the number people who could be the such tests can be admitted into evi- father of the person child. A tested who they dence if show nonpaternity, and the could be the father of that child therefore agreed, trial court again meticulously de- becomes one of that small minority and tailing reasoning: its the likelihood of his the father quite “Well, high. it is not I conclusive understand that that is the rule because even testing under such in the pos- State Idaho and that is the rule sibility states, remains that another states, member of in most I believe. A few that minority might them, have been around at among and California is are appar- time of conception. rule, ently relaxing although it is not 1. At Doug the divorce trial in this case Billie Lou could not have been Rebecca’s fa testify ther, testimony offered to had a blood test but the was excluded as hear say. taken and that the test results demonstrated So,
sure what California has my opinion done. The last more than I should let it. me, case that has been submitted to I don’t even want to consider it along Mr. Hancock attorney] Lou’s has with the other evidence. I am going [Billie several, submitted the official announce- deny going reject it and I am the offer Supreme ment Court State proof.” California, I nearly as can remem- Tr., pp. 65-67. ber, ruling was not a on whether or not *3 The trial by memorandum decision the test permitted. could be It sim- was held that there was insufficient evidence to ply a ruling on whether or not the Court presumption overcome the that was right had a to order the test or how the Rebecca’s Billie father and that Lou had test something should be ordered or Gary failed to establish that was Rebecca’s that effect and it I say, didn’t don’t be- appeals natural Lou father. Billie that de- lieve —in if it say fact did it would be termination. dicta about its admission in the trial of Now, the case. appellate we have some I. appear
court cases that to have admitted along test to be considered with other The HLA is typing test a tissue test determining evidence in paternity, but developed which was as a means of reduc- they in that case that is say it not conclu- rejection of ing organ the incidence of sive and that it very should be carefully transplants. The test is generally per- done because testimony should be taken cells, formed on white blood but may be and it just should be shown how applies it body done with other tissues. and, and what the rules are and so on as HLA test ... is based on the “[T]he understand, I nearly objection as can typing antigen identification and of is might that it considered to be con- he markers found white blood cells and clusive and it is not In conclusive. other body.... other tissues of the The basic Hancock, I words am sure that Mr. if he theory by antigen is that identifying it, presented “Now, would like to say, mother, markers of a child and of the proves father,” and, that he is the of antigen genetic child’s markers which course, it doesn’t. going along Even with only could be inherited from the father Mr. Hancock and say doctors have determined, generally can be thereby gotten so sophisticated that they pin can identifying high degree the father to a of it down to 98.9 percent. Let’s that say certainty.” we agree they can do that. There is still Jackson, Phillips v. 1230- I possibility. believe he said 1 in (Utah 1980) (footnote omitted). 31 140,000, and, something like that of For thorough discussion of the HLA test course, in the United there are States Terasaki, see Testing Resolution HLA of 160,000,000 people, several million I think 1000 Excluded Paternity Cases Not ABO 170,000,000, So, something or like that. (1977-78) (herein- Testing, 16 J.Fam.L. 543 140,000 there are a people lot in this Terasaki). after country and even if there is 1 HLA 140,000 alleged- The test results this case every over the United States ly probability Gary demonstrate that the there could be several thousand of them being the natural father of Rebecca is 98.98 just and it is possible that two or three of doubt, percent. Without this evidence is right them could be here in Rexburg and both relevant and material to the issue of possibility is a and that is why paternity. the trial court exclud- Courts won’t admit that kind of test be- primarily grounds cause it is ed the test results on the they say not conclusive and it quite possible permit is the “Idaho statutes do not it rely Court would on it too much and that is I those why interpreting refuse to and our Idaho decisions accept it because I think that its mere The against statutes rule its admission.” might evidence in the sway referring case tend to trial court was to the case of
669
Obendorf,
99
P.2d
submit
one or more blood tests to
Isaacson v.
Idaho
Act,
(1978),
or
and to the Idaho
whether
not the defendant
determine
7-1115,2 dis-
former
particularly
§
father of the
can
excluded
in connection with Isaacson.
cussed infra
added)
(emphasis
The
child....’
weight
authority,
consistent with the
Isaacson,
the trial court admitted into
statute,
is that evidence
above discussed
grouping
evidence blood
test results
excluding
test
grouping
of blood
results
did not exclude
admissible, and that evidence
been
had
administered to
nonpaterni-
failing
child in that case at the re-
results
involved
establish
quest
alleged
they
were
Am.Jur.2d Bas-
ty is inadmissible.
pursuant
not ordered
the trial court
Clark,
(1963);
Domestic Rela-
tards
§
report
1.C.
7-1115. The written
Evi-
(1968);
tions
5.3
McCormick on
any accompa-
results
admitted without
1972).
(E. Cleary
dence
ed.
See
expert
per-
who
nying testimony
Annot.,
(1956).
46 A.L.R.2d
*4
appeal
formed the tests. This Court on
the
of
“Respondent argues that
case
said:
Smith,
89,
v.
540 P.2d
Idaho
Comish
assignment
“The
of
appellant’s second
(1975),
proposition that
supports
the
evi-
challenges
error
the admission in
not exclude
blood test results which do
dence of
test
which did
reports
blood
admissible in evidence.
paternity are
appellant
of the
paternity
exclude the
Cornish,
not address the
this Court did
any
without
and which were admitted
evidentiary uses of
issue of the allowable
testimony.
expert
accompanying
actions,
re
tests in
thus
paternity
blood
“The
tests were administered to
blood
mis
spondent’s reliance on Cornish is
the
request
appellant
the
at the
of
placed.
and were
the
court
not ordered
trial
re-
evidentiary
“The
use of blood test
However, I.C.
pursuant to I.C.
7-1115.
§
in
should be limit-
paternity
sults
actions
7-1115
to the
persuasive
as
allowable
§
The
paternity.
ed to those that exclude
of
test
in
evidentiary uses
blood
results
error,
erred,
in
trial court
albeit harmless
actions,
clearly contem-
and
test
admitting in evidence blood
results
the
in evidence of
plates only
admission
paternity.
which did not exclude
blood test results which exclude paterni-
admitting
“The
in
Court,
trial court
erred
provides:
I.C.
7-1115
‘The
ty.
§
evidence,
objection by
proper
into
over
either
the
party, may
on motion of
order
mother,
with-
appellant,
to
the
the blood test results
her child and the defendant
7-1115,
possible
of
test evidence
2. The trial court relied on former I.C.
duction
blood
93,
322,
14, p.
its discretion feels
1969 Idaho Sess.Laws ch.
if the
in
applicable.
anough
was
to be
which
then
The sections
is rare
admit-
the blood factor
tests,
relating
possible proof
paternity.
blood
I.C.
Act
to
Under the
ted as
-1116,
repealed
Act,
Parentage
7-1115
since been
§§
and
have
enacted
five
Uniform
127,
replaced.
and
1982 Idaho Sess.Laws ch.
adopted
National Confer-
states and
the
and-1116,
2, p.
1 and
as
I.C.
7-1115
§§
amended,
§§
Uniform State
on
ence
Commissioners
statutory
appendicized.
law
ABA,
are
relating
pa-
Laws
the
evidence
substantially changed,
has been
as
fore-
was
results,
ternity may
test
include blood
opinion in
cast
1 to
Isaacson
footnote
our
evidence,
weighed
with the
in accordance
Obendorf,
Idaho
309 n.
alleged
probability
fa-
the statistical
(1978)
355 n.
noted:
joint
—which
paternity.
the
A
committee of
ther’s
Family
have
“It should be noted that some states
and the Ameri-
ABA section on
Law
legislation
recently
the in-
enacted
which allows for
recom-
can Medical Association
blood test results
troduction in evidence of
the National Conference
mended that
states
which do not exclude
Nine
de-
on Uniform State Laws
Commissioners
velop
on
Tests
have
the Uniform Act Blood
enacted
existing
legislation
acts
new
or amend
approved
Paternity,
was
to Determine
by
admissibility
simplify
evidence
of Commission-
Conference
National
thereof,
probative
in-
effect
test results and
cluding
on
and the ABA
ers
Uniform State Laws
evidentiary
of estimations
value
”
Act,
4 of
in addition
1952. Section
paternity.’
of ‘likelihood of
exclusion, permits
allowing
intro-
evidence of
out requiring the accompanying
excluded,
testimo-
is not
“his chances of actually
ny of
expert
who conducted the tests.
being
father are not usually high.”
It is
report
clear that the
in question
Terasaki,
was
supra at
Under
543.
the circum-
purpose
used for the
proving
stances, the general limitation on the use of
therein,
truth of the matter asserted
grouping
appears
test results
to be a
as such was
hearsay.”
inadmissible
consequence of
over the
concern
possibility
308-09,
99 Idaho at
an
P.2d
354-55
inference of paternity might be
(footnote omitted).
improperly
drawn
from the failure of a man
to be excluded from paternity. The lan-
A review of Isaacson
establishes
guage
Isaacson reflected what we then
main
holding
report
use of the
believed to be the legislature’s judgment,
its inadmissibility
hearsay.
The Court
i.e.,
the prejudice
which could result
did say,
as it
relative
7-1115
read
grouping
from
admission of blood
test
applies
also,
then and as it
to this case
not excluding paternity outweighs
results
“persuasive
statute was
as to
allow-
probative
whatever
value such test results
able evidentiary uses of blood test results in
proof
have as
of paterni-
affirmative
paternity actions.” Id. at
581 P.2d at
Norman,
ty. Cf. Goodrich v.
100 Misc.2d
the primary
appeal
issue on
(Fam.Ct.1979);
A review thorough of the Isaacson case *5 exceeding probability per ther with a 98 referring reveals that Court was only the to cent, in addition exclusion proving in blood tests in grouping its determination of the numerous cases in which A-B-0 test the blood evidentiary allowable uses of test produce inconclusive results.” Miller results. These were the tests issue in at 2660, Smith, (Ill.Cir.Ct. Isaacson, the v. 6 FaimL.R. 2662 reasoning Court in its 1980). expressly referred to blood tests. grouping 309, 99 581 Idaho at P.2d at 355. addi- “At the time that statute was en- this tion, the the Court authorities which grouping acted standard blood tests Thus, relied grouping discuss blood tests.3 accepted were were universally per- we conclude the decision in Isaacson as cells. only formed on red blood The three evidentiary the allowable uses blood ABO, group systems, MN and Rh blood preclude test results does not admission of not opinion do constitute evidence if proof HLA test results as on affirmative report is a of exclusion. The exclu- there Furthermore, paternity. issue of sion is a scientific fact of nature which reasoning ipso in Isaacson should not be demonstrated in the courtroom if can
facto to preclude extended the admission necessary of the test as the results are into HLA which evidence of test results do microscope.... under a There- visible not paternity. exclude fore, respect statutory and case to both law, Blood tests involve a limited an to be grouping exclusion is deemed conclu- number of variables and are rec- in all generally sive the issue of cases ognized accurate only excluding properly where the test has been adminis- Terasaki, However, generally supra testing blood cell See tered. red 543-44; (E. only McCormick on Evidence 211 involves a limited number of varia- 1972). Cleary prove ed. The reason for the limita- While the can that the bles. tion on the test re- the father of the grouping petitioner use blood herein is not sults is that he is the though putative they prove that even cannot 873, decided, sion, Morrison, appel- Cal.App.3d 88 3. At the time Isaacson was no Cramer v. admissibility Cal.Rptr. (Cal.App.1979), late HLA tests was not re- decisions on 153 865 16, January such until had been handed down. The first deci- leased 671 615, incorrectly ing, Fam.L.Q. (1975); 9 624 Polesky father. A man who has been & being Krause, Typing Disputed Paternity named has a 50-60% chance Biood conclusively, depending upon excluded his Capabilities of American Laborato- Cases— Therefore, on the type. relying ries, (1976). Fam.L.Q. 10 291 Under assuage standard tests alone would not circumstances, illogical it would be unless he was petitioner doubts by enacting conclude that former definitely excluded. 7-1115, legislature expressed an in- tent to bar the use of evidence obtainable typ-
“The HLA test is based on tissue ing through techniques of the white blood cells. This test is scientific then comprehensive Mecklenburger, far more because it in- known to it. v. Happel See 569, 579, larger Ill.App.3d volves a number of factors such as 56 Ill.Dec. (Romiti, J., antigens the white blood cells. It is (Ill.App.1981) N.E.2d widely accepted in scientific communities dissenting). particularly This conclusion is involving organ because in cases trans- light legislature true in of the fact that our plants it is used to match the donor and recently expressly provide acted to for the recipient. Accuracy is essential when admission of of the statistical dealing patients. with the lives of (which evidence is probability HLA expensive test is far more than the tests) adoption result of HLA grouping standard blood tests and has not -1116, (appendicized 7-1115 and I.C. §§ been routinely by used the courts in New hereto). 103 Ida- Murphey Murphey, Cf. York. possibility of this 720, 725, (1982). ho Fur- respondent being excluded if he has been thermore, language incorrectly named is somewhat better legislature Act itself demonstrates that the than 90%.” only referring grouping to blood tests. Norman, Goodrich v. 100 Misc.2d 7-1116, Former provides I.C. § (N.Y.Fam.Ct.1979) (em- N.Y.S.2d experts appointed to be the court re- phasis (citations in original) omitted). quires experts qualified such to be as exam- types.”5 iners of “blood The terminology The blood tests in this case were ordered employed types” that com- by the trial pursuant —“blood I.R.C.P. —“is monly applied to the Landsteiner series of 35(a),4 and without mention of former I.C. Cramer, *6 grouping red cell blood tests.” su- Isaacson, 7-1115. as in will § we pra, Cal.Rptr. 153 at 869. look to this statute and related statutes to determine legislature whether the has ex- problem sought to be remedied pressed an intent that HLA test results Act is A Paternity illegitimacy. that should not except be admitted to exclude decision limit use of to HLA test results paternity. paternity to those cases in which is exclud- 1969, ed inconsistent with one of when Idaho’s Act was would be Paternity enacted, appears primary purposes Paternity it that HLA were not Act —to tests insure reliable medical evidence be used in Tera- that proceedings. See saki, 1975, fact, at 544. In late as the issue of supra as made available to determine Despite proven reliability paternity proceedings standard tests in excluding paternity, were the tests. grouping grouping Landsteiner blood blood tests 873, Morrison, accept to test re- Cal.App.3d v. 88 some courts had refused See Cramer 865, excluding paternity see as conclu- Cal.Rptr. (Cal.App.1979); 153 871 sults Lee, paternity, allowing Test- issue of also Current sive on the Status .of 35(a) provides part Compare 7-1116 with the cur- § in relevant 5. former I.C. I.R.C.P. statute, (in- physical requires ex- the mental or condition rent version of the “[w]hen cluding party genetic group) perts “qualified blood of a ... is in as an examiner of to be controversy, present components in which the action is markers on blood cells and may pending party to submit to a order the 7-1116. ....” I.C. § physical physician or mental examination 672
jury
weigh
along
Malvasi,
to
test results
with
513,
other Malvasi v.
N.J.Super.
167
401
result,
evidence. As a
there were cases in
(N.J.Super.1979) (followed
A.2d 279
in J.H.
M.H.,
which a man who
scientifically
436,
had been
N.J.Super.
v.
177
for the stated in this child, mother, father, alleged any or male party calling but the the witness failed to testify witness who testifies or will about (20) notice, provide twenty day the the his sexual relations mother with the at a adjourn the may proceeding for the possible conception time of to submit to purpose taking of a blood test of the blood The performed tests. tests shall be prior hearing witness the testimony by qualified an as an examiner of expert if the witness the court finds that genetic present markers on blood cells party calling good the witness acted in and court. components, appointed by the added.) (Emphasis faith.” Verified documentation of the chain SHEPARD, Justice, dissenting. competent of the blood is evi- custody dence to establish chain of Veri- custody. my It is belief that the trial court and fied experts’ report shall be admitted majority opinion this Court in the have challenge testing trial unless a to the problems overlooked substantial totally procedures or the blood has been analysis are inherent in this cause. The ultimate (20) twenty days made before trial. is to proceedings end of these bastardize a “(2) court, re- The reasonable child, old a result with which I seven-year quest shall order that inde- by party, regardless protesta- cannot concur of the other ex- pendent performed tests mother, quarrels tions of and between a her perts qualified genetic as examiners of ex-husband, presumptive who is the present markers on blood cells and com- child, an whom the interloper ponents. performed by Additional mother claims as the father of the child qualifications of the same experts other slept during he with her the course because be ordered the court at the ex- may marriage the first husband. of her pense requesting additional party was married to one Appellant mother testing. 16,1974, cases, and that “(3) Stephenson In all November the court shall deter- mine qualifications marriage the number and was not terminated divorce experts. which is August until of 1976. The “(4) requesting party pay shall action, February of this was born the focus however, expense testing; of blood was con- Admittedly, that child cost of testing shall be recovered by during Stephenson ceived and born prevailing party the action. 1970, the clear law in Ida- marriage. Until “(5) Whenever the results of the tests bom dur- that a child conceived or ho was any exclude male witness possible from nigh marriage time of a was well ing paternity, the tests shall be conclusive be the child of irrebuttably presumed to evidence of nonpaternity of the male wit- Alber, In 93 Idaho that husband. Alber any ness. The refusal of to submit party existing (1970), the then to the blood tests shall be disclosed to the that the there- provide law was modified to subject court and is to the sanctions with- “is not conclu- existing presumption tofore jurisdiction in the If the the court. clear and con- be rebutted may sive but mother, action was brought by the child’s Alber, ultimate vincing evidence.” but she refuses to submit herself or the by the be addressed ordered to question tests, child to blood the action shall be was: trial court on remand dismissed. of fact based on finding “a specific “(6) Any party calling a male witness regarding heretofore adduced purpose testifying for the that he had had access for appellant whether any intercourse with the mother at sexual with his intercourse purpose of sexual provide shall possible conception time of separation their following wife then with the name and ad- all other November, 1966, during possible (20) twenty days of the witness dress Following the en- conception. period If hearing. the trial or pretrial before fact, the trial court finding of hearing try of such produced witness is at the male *9 cata “do not case of apply is further to enter his conclu- to a this nature instructed sion of whether drawn stating specific question law or not the where the issue in presumption legitimacy of the is support. support that of child Child is during period child the marital conceived for ... she the benefit of the children [and] by has been overcome clear and convinc- person in is not the real inter- [the mother] ing Id., 93 Idaho at evidence.” rights est of the child.” who can waive the P.2d at 327. Id., 93 Idaho (Emphasis supplied.) Alber result was P.2d at 324. The case, In the questions instant those have reached the mother notwithstanding view, not In my been addressed. the trial communicated, and in writ- orally had both proceeded rather the bland as- ing, to listen to her everyone who would sumption that was Stephenson not the fa- that her the father of the husband was not ther of the only question the child and was specifically child and that another named whether father of Crain was the the child. individual was the father of her child. result, course, Such a leaves the child floating limbo, in I a result cannot counte- majority opinion Much of today’s nance. hinged upon interpretation the of Idaho’s 7-1101, Act, Paternity seq. et I.G. Con- If the issue in instant the ease was the trary to the utilization of Act the paternity of a child born to an unwed moth majority opinion, er, I would hold that the the majority’s discussion of Comish v. intent, clear legislative as disclosed the Smith, (1975), 97 Idaho P.2d 274 and 7-1103, definitions contained in is that Obendorf, Isaacson v. 99 Idaho only Act should (1978), relevant, apply proceedings clearly would be since Isaacson, brought in both to establish of a Cornish and unwed child moth ers bom out specifi- had of wedlock. That statute brought paternity proceedings un cally der the provisions Act, defines “child” “child born Idaho’s as a out of 7-1101, require et seq, person, wedlock.” It defines “mother” as “the named mother of a out mother found child born of wedlock.” child, court to be the sup sum, I feel the embarks a Court port the child. If the facts of the case at dangerous voyage It is clear that today. bar any bore to either resemblance Cornish Crain, previous conduct, regardless of his Isaacson, or I instantly concur and nothing about now cares little or applaud the majority allowing our trial which milk is equally of human kindness court to technological utilize the advances mother also by Stephenson. shared did medicine, in test, specifically the HLA rights any not hesitate to abandon the child further justice the cause of in paternity might support have to the or the name not, proceedings. however, present We are appears presumptive her father but to have ed with such a set of facts. clearing been in primarily interested case, Alber, wife, In the instant as in way permanent relationship for a with her during the course marriage, appears of a had extra- erstwhile lover. It marital relations another paramount with man. A “interests” of the child became Alber, child window, was conceived. As in her mind when love flew out the least, terminated, instant case it is unclear to me at marriage her second and she the trial court no child she finding, rights made whether found that the had so the then readily husband had sexual access to his first divorce abandoned could wife during conception recouped by support the time of child way I it During proceedings, child. the divorce from her second husband. find difficult Alber, case, as in the the mother to choose between the alternatives. instant various took supporting the stance that her husband whom she one Does excuse Crain from very was the father of the child which the indicates he divorcing testimony fathered, child. It Alber that the doc- of the fortuitous probably was held in because judi- copulation partner trines of and res estoppel by judgment circumstances that his *10 was at that time and thoroughly married? Does one excuse the court detached from Stephenson from his paternal otherwise any action, of the other to the duties because the during child born his prejudice hence without bias or serving but marriage was undoubtedly result of only best interests of the child. relationship adulterous between then Mrs. Stephenson and Does one Crain? reward
the mother sterling of the child for her
qualities and her actions on behalf of the say,
child? The inclination would be to “A houses,”
pox upon your all of were it not
for the existence of the child. Alber, supra,
We stated in Alber v.
Idaho at
472 P.2d at
and reiterated
Miller,
in Miller v.
96 Idaho
custody was awarded to the former hus- band of the mother. April I can readily some results of visualize today’s decision which I for one majority perceive juris- as advances in our horribles,
prudence. Among parade I
see husbands in disclaiming divorce cases
parentage during of children born the mar-
riage demanding that medical technolo-
gy settle the issue.
I would remand the cause to the trial
court for trial on the issue of Stephenson’s
parentage of the clearly pre- child. He is child,
sumptively regard- the father of the previous negotiations
less of the divorce
entered into him and his then wife.
Only presumption adequately if the re- convincing
butted clear and
should the trial court conclude that Ste-
phenson Only is not the father of the child. any
thereafter would I hold that there is the child and
issue to Crain’s phase in that of the trial would I any any
conclude that there is relevance to parentage
evidence of Crain’s of the child.
Last, least, but not I would order the trial guardian ad litem for the appoint
court to be an officer of person should